An order merely recording automatic abatement is ministerial and not appealable.

The appellant sought to challenge an order dated 22 November 2017 by which the Trial Court recorded that the miscellaneous case filed under Order IX Rule 13 of the Code of Civil Procedure, 1908 (“CPC”) by the appellant’s predecessor-in-interest/father had abated because 90 days had elapsed after the original petitioner’s death.

The appellant contended that the parties had been substituted before the Trial Court, although the substitution was not reflected in the cause title appearing in the certified copy of the impugned order.

The appeal was accompanied by applications for leave to prefer the appeal, condonation of delay, and other consequential reliefs.

The principal respondent was treated as duly served through an “unclaimed” postal endorsement following intimation, and the proforma respondents were also served; none appeared when the matter was called.

The Court applied Order IX Rule 13 of the CPC, under which a defendant may seek setting aside of an ex parte decree, together with the procedural law governing abatement upon the death of a party.

It held that abatement occurs automatically by operation of law upon expiry of the prescribed 90-day period for substitution; a subsequent order merely recording that abatement is ministerial and does not constitute a dismissal of the proceeding.

Since such an order does not determine the proceeding on merits and is not an appealable order in the circumstances, an appeal against it is not maintainable.

The Court also recognised that applications for substitution, setting aside abatement, and condonation of delay may be pursued before the Trial Court.

The Court first accepted the appellant’s submission that the parties had already been substituted in the Trial Court, and therefore granted leave to prefer the appeal despite the inaccurate cause title in the certified copy.

On the substantive question, it distinguished between an order dismissing a proceeding and an order merely recording an abatement that had already occurred automatically after the expiry of 90 days from the original petitioner’s death.

Because the Trial Court had not dismissed the miscellaneous case on merits—and, following abatement, could not have done so—the impugned order did not provide a legally appealable adjudication.

The appeal was consequently held to be not maintainable, without prejudice to the appellant’s right to seek appropriate procedural remedies before the Trial Court.

However, CAN 1 of 2025, F.M.A.T. 287 of 2025, and CAN 2 of 2025 were dismissed as not maintainable because the impugned order merely recorded the automatic abatement of the Order IX Rule 13 miscellaneous case and was not an appealable adjudication.

The dismissal did not preclude the appellant from filing before the Trial Court applications for substitution, setting aside abatement in Miscellaneous Case No. 5235 of 2015, and condonation of delay in filing those applications.

The Trial Court was directed to decide such applications independently and in accordance with law, uninfluenced by the merits-related observations in the High Court’s order.

No order was made as to costs.